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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford

No. 97-892

THE STATE OF NEW HAMPSHIRE

v.

ALAN CORT

December 28, 2000

Philip T. McLaughlin, attorney general (Christopher H.M. Carter,
assistant attorney general, on the brief and orally), for the State.

Backus, Meyer, Solomon, Rood & Branch, of Manchester (Jon
Meyer on the brief and orally), for the defendant.

BROCK, C.J. The defendant, Alan Cort, was convicted after a bench trial in
Superior Court (Fitzgerald, J.) of first degree assault on his daughter, see
RSA 631:1, I(d) (1996). On appeal he argues that: (1) there was insufficient evidence to
find that the victim was injured by being severely shaken and that the defendant inflicted
the injuries; (2) the trial court erred in admitting testimony regarding the amount of
force needed to inflict injuries on the victim; and (3) the trial court erred in allowing
certain expert testimony. We affirm.

The following facts were adduced at trial. On August 26, 1996, the victim
was approximately three months old. Although suffering from a virus, she was otherwise in
good health. Her mother and father picked her up from the latter's grandmother's house at
approximately 5:00 p.m., at which time there was nothing unusual about the child's
behavior. At approximately 6:00 p.m., her mother left her at home with the defendant while
she went to purchase food. The defendant and the child were alone for approximately thirty
to forty-five minutes. The mother returned home to find her daughter already asleep,
although her usual bedtime was at least an hour and a half later.

The next morning, mother and father were awakened by the child's strange,
raspy cry. The victim would not open her eyes and was unable to hold up her head. Her
parents brought her to Rochester Pediatrics and she was soon admitted to Frisbee Hospital.

The next day, the victim's condition worsened and she was transferred to
Dartmouth-Hitchcock Medical Center. Dr. James J. Filiano, a pediatrician, treated the
victim who, by this time, was in a comatose state and suffering from intermittent
seizures. A physical examination revealed she had sustained bilateral retinal hemorrhaging
and the splitting or separation of her retinal tissues. Dr. Filiano estimated that the
victim's injuries occurred between twenty and forty-eight hours before he saw her, which
was consistent with information from the victim's mother and the defendant that the child
had appeared healthy until 7:00 p.m. on August 26.

Dr. Filiano asked the mother and father what might have happened to the
victim to cause her injuries. Both denied knowing the cause of their daughter's injuries.
The mother also asked the defendant if anything had happened while she had been gone on
August 26. He denied that anything had happened. On two separate occasions, detectives
from the Rochester Police Department also asked the parents if they recalled any accident
or other incident that could be responsible for the child's injuries. Both denied knowing
anything regarding the cause of their daughter's injuries.

On September 4, however, while meeting with one of the detectives, the
defendant disclosed an incident that occurred on August 26 while he had been alone with
his daughter. The defendant stated that while he was holding her and giving her a bottle,
he fell asleep. As the victim began to fall to the ground, her head made contact with his
hand. The defendant awoke and caught the victim by her right leg. The next day the
defendant provided a videotape demonstration of how the victim had fallen from his lap.
Doctors treating the victim viewed the videotape and concluded that the defendant's
description of the incident could not have caused the victim's injuries. Detectives
questioned the defendant again to see if he had anything to add to his description of
events, and he stated that he did not.

Approximately two months later, while she was being treated for spinal
meningitis at Massachusetts General Hospital, the victim was diagnosed with von
Willebrand's disease (VWD). VWD is a hereditary bleeding disorder which affects the
blood's ability to clot.

The defendant was indicted for first degree assault for recklessly causing
serious bodily injury to the victim. The bench trial consisted mostly of expert medical
testimony. Three medical experts testified for the State that the victim's injuries were
consistent with a significant and violent shaking incident. The defendant's medical expert
did not dispute the nature of the victim's physical injuries, but opined that because the
victim suffered from VWD, the force necessary to cause the injuries was actually very
slight and that a fall as described by the defendant could have caused her injuries. The
trial court found the defendant guilty of first degree assault and this appeal followed.

The defendant makes two insufficiency arguments. He first asserts that
there was insufficient evidence presented by the State to demonstrate that he acted
recklessly in injuring the victim because the victim's injuries could have been caused by
the accident described by the defendant. Second, he argues that the State presented
insufficient evidence that the defendant was the one who caused the victim's injuries. To
prevail on these arguments, "the defendant must show that no rational trier of fact
could have found guilt beyond a reasonable doubt, viewing the evidence in the light most
favorable to the State." State v. Hodgdon, 143 N.H. 399, 402, 725 A.2d 660,
663 (1999) (quotation omitted). The trier of fact "may . . . infer guilt from
circumstantial evidence if that evidence excludes all other rational conclusions." State
v. Evans, 134 N.H. 378, 383, 594 A.2d 154, 158 (1991).

The defendant argues that there was no basis in the evidence for a finding
of guilt beyond a reasonable doubt of first degree assault because the testimony of the
State's experts as to what degree of force was necessary to inflict the victim's injuries
failed to account properly for the VWD diagnosis. We disagree.

The defendant's trial consisted of conflicting expert opinions. The State
introduced testimony from three medical experts: Dr. Filiano, qualified as an expert in
pediatrics and neurology; Dr. William J. Rosen, qualified as an expert in ophthalmology;
and Dr. Eli H. Newberger, qualified as an expert in pediatrics and in the field of child
abuse. Dr. Filiano, who initially treated the victim, testified regarding the types of
physical injuries that usually suggest shaken baby syndrome. These included: retinal
hemorrhages, bleeding around the brain, subdural hematoma, cerebral edema, and
retinoschisis.

Dr. Filiano then testified that when he first examined the victim she was
unresponsive, there were occasional jerking movements of her eyes, and she had
intermittent seizures. During the initial examination, Dr. Filiano became concerned that
there was blood in the back of the retinas and referred her to an ophthalmologist, Dr.
Rosen. As a result of Dr. Rosen's examination, the victim was diagnosed as having
bilateral hemorrhages through nearly all nine layers of each retina. Additionally, Dr.
Filiano diagnosed the victim with having both subdural hematoma and cerebral edema. Based
largely on this information, Dr. Filiano testified that in his opinion the victim had
"under[gone] an acceleration/deceleration injury," that is, the victim had been
shaken.

Dr. Filiano also testified that he had viewed the defendant's videotape
demonstration of the incident on August 26. He testified that the demonstration could not
explain the victim's injuries because the defendant supported the victim's head and the
acceleration/deceleration of the victim's fall was not of sufficient force to have caused
the victim's injuries.

After learning that the victim was diagnosed with VWD, Dr. Filiano
testified that he re-evaluated the victim's case to determine if VWD supported the
defendant's account, and he testified that the injuries to the brain and retinas could not
have been caused without a significant force. Additionally, Dr. Filiano testified that the
victim suffered from brain atrophy, which occurs when the brain loses some of its
structural mass. Finally, Dr. Filiano testified that the victim's injuries -- brain
atrophy, retinal injuries, subdural hematoma and cerebral edema -- were tissue injuries as
opposed to injuries caused by excessive bleeding.

The ophthalmologist, Dr. Rosen, testified that the victim suffered from
retinal hemorrhages and retinoschisis, which is indicative of shaken baby syndrome. He
also testified that a disorder affecting the blood's ability to clot would not cause the
bleeding in the first place; an event would first need to occur to cause the bleeding.
Finally, Dr. Rosen testified that his opinion was based not on the quantity of blood
found, but on its location in the eyes.

The State's final expert witness was Dr. Newberger who testified that, in
his opinion, based on the results of the physical examination, the victim's mental status,
and the ophthalmological findings, the victim suffered from shaken baby syndrome. Dr.
Newberger testified that this opinion took into account the diagnosis of VWD. He also
testified, similar to Dr. Rosen, that while the victim's disorder may have increased her
tendency to bleed, the injuries could not have been initially caused by VWD. Although the
State's experts were all familiar with VWD, none had expertise in that particular
disorder.

The defendant's medical expert, Dr. Michael Laposata, was qualified as an
expert in coagulation and coagulation studies. Dr. Laposata disputed neither the victim's
physical injuries nor that the injuries were caused by an acceleration/deceleration force.
Rather, he opined that given her VWD disorder, a trauma such as the one described by the
defendant, could have caused the victim's injuries. Dr. Laposata conceded that he had
previously neither treated nor diagnosed shaken baby syndrome. Additionally, he conceded
that the head of the Pediatrics Division of Massachusetts General Hospital had disclaimed
his opinion that because the victim suffered from VWD, a fall as the defendant described
could have generated enough force to cause her injuries. Dr. Laposata also disputed
whether all of the victim's injuries were tissue injuries as opposed to injuries caused by
bleeding.

In reaching its decision that the defendant was guilty of first degree
assault, the trial court necessarily evaluated the testimony of the various experts, and
found with regard to the defendant's expert that "the reasons he gave in support of
his opinion were not sound and that the other medical evidence within this case
substantially outweighed the opinion expressed by Dr. Laposata." The trial court, as
the trier of fact, was free to evaluate the various experts' credibility, to resolve
conflicts in the testimony in favor of the State, seeState v. Wong, 125
N.H. 610, 625, 486 A.2d 262, 272 (1984), and in doing so "reject any inferences urged
by the defendant." Evans, 134 N.H. at 384, 594 A.2d at 158 (quotation
omitted). Thus, we conclude that the evidence was sufficient for the trial court to find,
beyond a reasonable doubt, that the victim's injuries resulted from being recklessly
shaken, and to exclude all other rational explanations.

The defendant next contends that, even assuming that the victim's injuries
were caused by shaking, there was insufficient evidence to establish that the defendant
was the one who shook the victim. We disagree.

The State presented evidence that the victim showed no sign of injury when
her mother left her with the defendant on August 26. The defendant was then alone with the
victim for approximately thirty to forty-five minutes. When the victim's mother returned,
the victim was already in bed, and no one had contact with her until the next morning by
which time the victim was suffering from various injuries. Dr. Filiano testified that the
victim's injuries occurred between twenty and forty-eight hours prior to his examination
on August 28. Thus, the evidence clearly showed that the defendant was alone with the
infant at the critical time the injury was apparently inflicted. State v. McClary,
541 A.2d 96, 103 (Conn. 1988). Viewing the record in the light most favorable to the
State, we conclude that there was sufficient evidence from which the trial court could
have found beyond a reasonable doubt that the defendant was responsible for the victim's
injuries.

The defendant next contends that the trial court erred in permitting the
State's experts to testify as to the amount of force required to inflict the victim's
injuries. The admission of expert testimony is governed by New Hampshire Rule of Evidence
702:

If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.

The defendant argues that the trial court should have required a Frye
hearing, seeFrye v. United States, 293 F. 1013 (D.C. Cir. 1923), to
determine if the amount of force required to cause the victim's injuries was accepted in
the scientific community given her diagnosis of VWD. Because the parties do not contend
that the Daubert standard, seeDaubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), should govern our analysis, we do not decide whether the Frye
test has been superseded by the adoption of New Hampshire Rule of Evidence 702, see,
e.g., State v. Cressey, 137 N.H. 402, 405, 628 A.2d 696, 698 (1993).

The trial court denied the defendant's request for a Frye hearing,
stating that the proffered testimony was opinion, and "not `scientific evidence'
subject to a [Frye] analysis. It is not like a BAC [blood alcohol concentration] or
a DNA evidence of that type of material which requires the [Frye] analysis. It is
simply subject to the standard rules regarding an expert witness . . . ." We agree
with the trial court's assessment.

The defendant concedes that shaken infant syndrome, as a term used to
connote conditions which may typically result from vigorously shaking a young child, is
generally accepted in the medical community. The specific question on appeal, therefore,
is whether a Frye hearing was necessary to determine the reliability of testimony
regarding the amount of force necessary to cause the victim's injuries given that the
victim suffered from VWD.

Having conceded that shaken baby syndrome is generally accepted in the
medical community, the defendant necessarily concedes that an expert can testify that
symptoms, such as those exhibited by the victim, generally require vigorous shaking. Thus
the defendant's contention on appeal is a challenge to the application of such expert
testimony to this particular case in light of the victim's diagnosis of VWD. This
contention, however, goes more to the weight to be given the experts' opinions rather than
to the admissibility of their testimony. "That there are other possible causes of the
injur[ies] goes to the weight of the opinion[s], not to [their] admissibility." McClary,
541 A.2d at 102.

Based on their respective expertise, each of the experts testified as to
the amount of force necessary to inflict the victim's injuries. Although none of the
State's experts professed to be experts on VWD, all were familiar with VWD and could offer
opinions as to whether minimal force would cause a victim with VWD to suffer such
traumatic injuries. The defendant had ample opportunity to test the State's experts
regarding the validity of their opinions given the VWD diagnosis. We therefore hold that
the trial court did not abuse its discretion in admitting expert testimony regarding the
amount of force necessary to cause the victim's injuries.

The defendant also argues that a Frye hearing was necessary
relative to Dr. Filiano's direct testimony regarding the amount of force necessary to
inflict the victim's injuries:

Studies have been done to try to estimate the amount of force applied and
have extrapolated from other scientific studies, and the order is in many times the force
of gravity applied to a child. So somewhere between 4 and 10 G's has been considered a
reasonable estimate.

Assuming, arguendo, that the State was required to demonstrate that
it is generally accepted in the scientific community that the force required to cause
shaken baby syndrome is four to ten G-forces, any error was harmless beyond a reasonable
doubt.

The State bears the burden of proving that an error is harmless, a burden
satisfied by proof beyond a reasonable doubt that the erroneously admitted evidence did
not affect the verdict. In deciding whether the State has met its burden, we consider the
strength of the alternative evidence presented at trial. We also consider the character of
the inadmissible evidence, including whether the evidence was cumulative or
inconsequential in relation to the State's evidence.

Hodgdon, 143 N.H. at 401-02, 725 A.2d at 663 (quotation omitted).

The defense at trial was that the force inflicted on the victim was
minimal. Each of the State's experts disputed this and described the force necessary to
cause the victim's injuries as "excessive," "violent," and
"vigorous[]." Thus, Dr. Filiano's specific testimony regarding the G forces
involved when shaking a baby was cumulative. Moreover, as the trial court noted, it was
not required "to find . . . the precise degree of force used," but simply that
the amount of force used was reckless.

Intertwined with the defendant's Frye argument is the contention
that the State's experts were allowed to testify as to the amount of force required to
inflict the victim's injuries without the introduction and examination of the medical
literature upon which their opinions were based. Having held that the State's experts
could testify as to the amount of force inflicted upon the victim, we find this argument
to be without merit. New Hampshire Rule of Evidence 705 provides:

The expert may testify in terms of opinion or inference and give reason
therefor without prior disclosure of the underlying facts or data, unless the court
requires otherwise. The expert may in any event be required to disclose the underlying
facts or data on cross-examination.

See alsoN.H. R. Ev. 703. The State's experts' testimony
does not become unreliable merely because their opinions were based on undisclosed
information. The defendant was free to cross-examine the State's experts regarding the
basis for their opinions.

Finally, the defendant argues that the trial court erred in allowing Dr.
Newberger to rebut Dr. Laposata's opinions because Dr. Newberger lacked expertise in
coagulopathy or VWD. We disagree.

The defendant does not dispute that the trial court correctly qualified
Dr. Newberger as an expert in pediatrics and child abuse; rather, he contends that the
doctor's expertise in these fields does not make him an expert on the effects of VWD on
the victim. We agree that simply because a witness has been qualified as an expert in a
particular area does not mean that the witness can testify regarding all related areas. Cf.,
e.g., Chase v. Mary Hitchcock Mem. Hosp., 140 N.H. 509, 512-13, 668 A.2d 50,
53 (1995). Here, however, the focus of the defendant's objection is that Dr. Newberger
based his opinion on the effects of VWD on the victim even though he lacked a thorough
understanding of VWD and its possible effects.

"Objections to the basis of an expert's opinion go to the weight to
be accorded the opinion evidence, and not to its admissibility. The appropriate method of
testing the basis of an expert's opinion is by cross-examination of the expert." Tullgren
v. Phil Lamoy Realty Corp., 125 N.H. 604, 609-10, 484 A.2d 1144, 1148 (1984) (citation
omitted). Here, the defendant had ample opportunity to cross-examine Dr. Newberger on the
basis of his opinion that a VWD diagnosis would not lead to the victim's injuries without
a severe trauma. This cross-examination allowed the defendant to test the weight that Dr.
Newberger's opinion should be given by demonstrating Dr. Newberger's familiarity or lack
thereof with VWD. Thus, the trial court did not abuse its discretion in allowing Dr.
Newberger's testimony.

Affirmed.

JOHNSON, J., sat for oral argument but retired prior to the final vote;
THAYER, J., sat for oral argument but resigned prior to the final vote; BRODERICK, J.,
concurred; and HORTON, J., retired, specially assigned under RSA 490:3, concurred.